WWD Law Review: Parental Leave, the Eclipse and Color Protection

The Estée Lauder Cos. Inc. was hit by the EEOC, Amazon's glasses stir issues and Cheerios lose in court.

General Mills lost a case over the protectability of the color of the Cheeerios box.

Shutterstock / Sheila Fitzgerald

A new lawsuit filed against The Estée Lauder Cos. Inc. accuses the cosmetics giant of discriminating against new fathers. The “Great American Solar Eclipse” not only led to a cottage market of counterfeit protective eyewear, but if a newly filed suit is any indication, an influx of litigation is in the cards. And now, five years after the court’s hotly anticipated decision in Louboutin v. Yves Saint Laurent, the U.S. trademark body has heard a new case on color.

Dads v. Moms v. Estée Lauder

Fashion brands, cosmetics companies, publications and company, it is time to brush up on federal gender-bias laws in order to avoid unwanted attention from the Equal Employment Opportunity Commission. The American federal agency that administers and enforces civil rights laws against workplace discrimination has filed suit against the Estée Lauder Cos. Inc., alleging the cosmetics giant is discriminating against new fathers by not giving them as much paid leave and as flexible of return arrangements as new mothers.

According to the EEOC’s lawsuit, which was filed this week in federal court in Philadelphia, the cosmetics company gives new mothers six weeks of paid leave as “child bonding” time, while new fathers receive two weeks. This, according to the organization’s complaint, is in violation of federal laws prohibiting sex bias in the workplace and requiring that men and women be paid equally for equal work.

Before this is brushed off as a one-off, it is worth noting that this is not the first time there has been a pregnancy-related lawsuit centering on new dads. While still under the watch of founder Sophia Amoruso, Nasty Gal, the Los Angeles-based apparel brand, was sued by four former employees, all of whom charged the #GirlBoss company with violating the California Family Rights Act and Pregnancy Discrimination Leave Law. Three of the employees were pregnant women and the fourth, a new father who had requested paternity leave before being let go. (Nasty Gal argued at the time that these four firings were part of a larger “restructuring” effort).

According to those lawsuits, all of which were filed in 2015 and have since been settled out of court, the company “refused to provide the right to pregnancy leave or reinstatement” for female and male employees.

Faux Solar Eyewear

In the latest blow to Amazon’s credibility, the marketplace site has been slapped with a lawsuit on the heels of Aug. 21’s solar eclipse, alleging that it negligently made counterfeit “solar safe” eyewear available for sale on its site. In his class action lawsuit, plaintiff Thomas Corey Payne alleges that he watched the eclipse wearing eyewear he purchased on Amazon, only to experience severe headaches and vision impairment after the fact.

While Amazon is said to have issued a recall of a significant portion of “solar safe” eyewear that was sold on its site — likely by third parties — in light of widespread reports of fakes permeating the market, Payne claims he never received notice of the recall. As a result, he filed a class-action lawsuit aiming to enable any other individuals who purchased allegedly counterfeit eyewear from Amazon to join in his suit.

The lawsuit — and potentially more just like it to follow — is the latest in a string of hits for Amazon, which has come under increasing fire in recent years for the inundation of its platform with third-party sellers of counterfeit goods, much to the dismay of well-meaning consumers and brand owners alike.

The Color War

Almost exactly five years after the Second Circuit Court of Appeals held that Christian Louboutin does, in fact, have a valid trademark in the color red that adorns the soles of its famous shoes (as long as the body of the shoes, themselves, are not red), the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board has put an end to a two-year battle over the protectability of the color yellow.

The TTAB has held that General Mills’ 76-year-old Cheerios brand cannot claim exclusive rights over the yellow hue that adorns its cereal boxes. While certainly not a fashion product, the ruling is noteworthy as it stands to provide some insight for brand owners — no matter their product — into the protectability of single colors in light of the ever-developing war over color and brands’ attempts to monopolize the ones most closely associated with their products.

As for why the TTAB shot down General Mills’ quest for exclusivity, it held that, for one thing, too many other companies — such as Kellogg’s, Post, Quaker and even other General Mills brands — make use of a similar hue for their cereals. It also noted that General Mills does not make consistent use of the color across its complete range of Cheerios product — which boast different packaging for different flavors.

The TTAB’s decision stands at odds with something of a long list of colors that have been deemed protectable, but most notably for the fashion-minded: Louboutin’s red, Tiffany & Co.’s blue and Gap’s navy blue.

Even if the case at hand does center on the color of a cereal box, it should serve as a reminder to brand owners that the law does, in fact, enable them to protect the distinctive features of their designs even if the distinguishing feature is just one color — but only if they can show that consumers have come to recognize that feature as being connected to the brand.

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